Mr. Greg J. Carman, City Attorney, City of Appleton,
200 North
Appleton Street, Appleton, Wisconsin 54911, appearing on
behalf of the City of Appleton, referred to below as the
City.

ARBITRATION AWARD

The Association and the City are parties to a collective
bargaining agreement which was in effect at all times relevant to
this proceeding and which provides for the final and binding
arbitration of certain disputes. The Association requested, and
the City agreed, that the Wisconsin Employment Relations Commission
appoint an Arbitrator to resolve a dispute reflected in a grievance
filed on behalf of "Steve Bartell and all other similarly situated
APPA Members". The Commission appointed Richard B. McLaughlin, a
member of its staff. Hearing on the matter was held on February 9,
1993, in Appleton, Wisconsin. The hearing was transcribed, and the
parties filed briefs by March 29, 1993.

ISSUES

The parties did not stipulate the issues for decision. I have
determined the record poses the following issues:

Was the grievance submitted for arbitration in a timely
fashion under Article XVIII, Section E?

If so, did the City violate Article IV of the Collective
Bargaining Agreement when it refused to pay officers at the rate of
time and one-half for off-duty time spent training in the use of
pepper mace?

If so, what is the appropriate remedy?

RELEVANT CONTRACT PROVISIONS

ARTICLE IV - OVERTIME

. . .

Employees who are required to participate in training on their
off-duty time shall be paid at the rate of time and one half for
actual time spent at such training but shall not be eligible for
call time or any minimum payment . . .

ARTICLE XVIII - GRIEVANCE PROCEDURE

Both the Association and City recognize that grievances and
complaints should be settled promptly and at the earliest possible
steps and that the grievance process must be initiated within
twenty (20) days of the incident or within twenty (20) days of the
officer or Association learning of the incident. Any grievance not
reported or filed within the time limits set forth above shall be
invalid, provided however that the time limits may be extended by
mutual consent of the parties.

Any grievance not reported or filed within the time limits set
forth above, and any grievance not properly presented to the next
step within the time limits set forth below, shall be invalid,
provided however that the time limits may be extended by mutual
agreement.

. . .

D. The grievance shall be presented in writing to the
Personnel
Director within seven (7) days (Saturdays, Sundays and holidays
excluded) of completion of Step 3.

1. The Personnel Director shall within
five (5) days set up
an informal meeting with all parties involved up to this point.
Within seven (7) days (Saturdays, Sundays and holidays excluded)
after this meeting, a determination shall be made and reduced to
writing and copies submitted to all parties involved.

E. If the grievance is not settled at the fourth step of the
grievance procedure, the aggrieved party may within five (5) days
submit the grievance to an arbitrator. The arbitrator shall be
selected by the Wisconsin Employment Relations Commission . . .

BACKGROUND

The grievance, dated "08-27-91", was submitted on behalf of
"Steve Bartell and all other similarly situated APPA Members" by
the Association's President, Reid Holdorf. The "similarly
situated" officers were Dave Nickels and Cary Meyer. Nickels and
Meyer attended Pepper Mace Training on August 16, 1991, and each
submitted a voucher for overtime worked for two and one-half hours.
Bartell submitted a similar voucher for two and one-half hours of
overtime worked in attending Pepper Mace Training on August 23,
1991. (1)

The parties, at hearing, stipulated to the following facts:

Overtime was requested by Joint Exhibits 3, 4 and 5 for
training time during scheduled time off.

Officer Bartell, Nickels and Meyer each received two-and-a-half
hours of training in the use of pepper mace.

Officer Bartell, Nickels and Meyer were each aware of the
content of Joint Exhibit 2 prior to receiving the pepper mace
training.

Officers are not required by the City to use pepper mace as an
enforcement tool. If an officer chooses to use pepper mace as an
enforcement tool, the City does require the officer to be trained
in its use. (2)

Three separate training sessions conducted by Officer Charlie
Klauck will be held on August 16th, 19th, and 23rd from 1200-1600
hours in Room A for those interested in becoming certified to use
and carry pepper mace.

Pepper mace training is voluntary and you will not be allowed
to carry it unless you attend the class and are certified. There
will be pre and post tests and everyone attending has to be exposed
to the mace during the training in order to be certified. If you
wish to participate in the training you are to wear old clothes and
the department will provide the mace for the training. Once your
are certified you will be required to purchase your own mace. If
you wear contacts, please bring something to store them in because
you will have to remove them prior to the practical training.

Please submit an inter-office to me prior to August 1, 1991 on
your interest in the training and which four hour block you plan to
attend. Please clear your attendance with your supervisors for
scheduling purposes. Any questions, see me.

It is undisputed that, prior to the issuance of the July 2,
1991, memo, the City had compensated employes at time and one-half
for attending various types of training conducted during an
employe's scheduled time off. Such training included the use of
the PR-24 Baton; basic and skills training for Recruit Assessment,
which involves officer participation in the hiring process; basic
and skills training for ID Techs, who collect and assess evidence
at crime sites; basic and skills training for Defensive Tactics
Coach; basic and skills training for Shooting Coach; and basic and
skills training for Field Training Officer. Officers are required
to be trained in the use of a straight baton, and are required to
carry one. An officer who has completed such certification
training may elect to use a PR-24 Baton. Use of this baton
requires, however, training beyond that for a straight baton. Each
of the assessment or training functions noted above can be assumed,
on a voluntary basis, by an individual officer. An officer
electing to assume such a function must, however, undergo training.

It is not disputed that the City has, on a regular basis, paid
at the time and one-half rate for the training noted above, when
that training took place during an employe's scheduled time off.
The City has, however, acted to eliminate such payment in certain
cases. For example, on August 8, 1991, Lieutenant Larson-Smith
issued the following memo regarding "Assessor's Training":

Approval has been given by your supervisor's for you to attend
the Assessor's training at the Department on August 21st from 0800-1600 hours and on
August 22nd from 0800-1200 hours in Room A. This
is a voluntary school with no overtime give. D/C Kolpack will be
the instructor. We are scheduling a pre-entry assessment center
for the end of September, so you might have an opportunity to use
your new skills fairly soon.

This memo is the subject of another grievance.

The Processing Of The Grievance

The grievance was discussed with Bartell's supervisor on
September 6, 1991. A written grievance was then delivered to the
office of the Deputy Chief of Operations, Bryce Kolpack, on
September 11, 1991. The Deputy Chief issued his response in a
letter dated September 17, 1991, which reads thus:

. . .

2. The announcement memo for the pepper mace training
(copy
attached) dated July 16, 1991, clearly designates this training
session as a voluntary and asks the employee to prearrange their
individual schedule with their supervisor.

3. Individual employees who wished to take advantage of
the
training could do so, as their schedule permitted. The department
did not require all officers to attend the training session nor
does the department require the officers to carry the pepper mace
canisters.

. . .

Reid Holdorf, the Association's President, received the letter and
filed the grievance with Chief of Police David Gorski on September
17, 1991. On September 18, 1991, Gorski issued a letter to Holdorf
stating his "concurrence with Deputy Chief Kolpack's response."
Holdorf received Gorski's response on September 20, 1991, and filed
the grievance with the office of David Bill, the City's Director of
Personnel, on September 25, 1991. On October 21, 1991, Bill
indicated to Holdorf that a meeting should be scheduled on the
grievance. That meeting was conducted on November 6, 1991. Bill
stated the City's position in a letter to Holdorf dated November
15, 1991, which reads thus:

. . .

The pepper mace training was voluntary, not required. The
employees who participated knew this in advance and also knew that
they would not receive payment at time and one half for their
attendance.

Based on the clear contract language, and on the employees'
total discretion to participate or not participate in the program,
the grievance must be denied.

The parties held further processing of the grievance in abeyance
pending the outcome of then on-going contract negotiations.

During the course of those contract negotiations, the
Association proposed to eliminate the reference to "required"
training from the fourth paragraph of Article IV. The Association
ultimately dropped this proposal. Bill testified that the proposal
was dropped as early as December of 1991. On April 13, 1992, the
Association filed a petition for interest arbitration. On June 9,
1992, a Commission investigator mediated, without success, the
parties' negotiations. On June 25, 1992, the Association filed its
request for grievance arbitration. On September 28, 1992, the
Commission's investigator formally advised the Commission the
parties were at impasse in their contract negotiations.

Further facts will be noted in the DISCUSSION section below.

THE ASSOCIATION'S POSITION

The Association phrases the issue for decision on the merits
of the grievance thus:

Did the City violate Article IV of the Collective Bargaining
Agreement when it refused to pay officers at the rate of time and
one half pay for off duty time spent by the officers in attending
required training to use a particular enforcement tool, such as
pepper mace?

After a review of the evidentiary background, the Association
contends that the timeliness issue asserted by the City must be
rejected. More specifically, the Association argues that the
parties mutually agreed, "during the fourth step of the grievance
process . . . to hold this grievance in abeyance pending contract
negotiations." Noting that those contract negotiations continued
into the summer of 1992, and that the Association regarded the
grievance as a negotiable point even after a relevant contract
proposal was dropped, the Association concludes that it advanced
the grievance to arbitration in a timely fashion. Beyond this, the
Association notes that the City failed to object to the submission
of the matter to arbitration until the assignment of an arbitrator
to the case, and failed to directly notify the Association of its
objection until the arbitration hearing. Beyond this, the
Association argues that the City has itself been untimely in
adhering to the requirements of the grievance procedure, and that
the parties routinely ignore such procedural flaws.

Turning to the merits of the grievance, the Association argues
that the fourth paragraph of Article IV is not ambiguous, and
provides overtime for "required" training. Acknowledging that an
officer has some discretion in the choice of a weapon, the
Association notes that once selected, the City requires training in
the use of the weapon selected by the officer. This requirement,
the Association concludes, is sufficient to create the entitlement
provided in the fourth paragraph of Article IV.

Beyond this, the Association contends that well-established
past practice supports its reading of Article IV. More
specifically, the Association contends that off-duty training or
skill update training on the following tools and functions has been
paid by the City at time and one-half: PR-24 use; Recruit Assessor
training; I.D. Tech training; Defensive Tactics Coach training; and
Shooting Coach training. In each case, the officer's assumption of
the tool or function was voluntary, but required training when the
tool or function was assumed. That the City has attempted, as of
August 8, 1991, to deny training at the overtime rate for the
function of Recruit Assessor has been separately grieved and is,
according to the Association, irrelevant to this grievance.

That the City has attempted to distinguish between voluntary
and required training is, the Association contends, a belated
effort with no support in contract language or the parties'
practices. Beyond this, the Association contends that evidence of
bargaining history establishes only that the language of the fourth
paragraph of Article IV has been unchanged since 1985, and
Association efforts to amend that language reflect no more than the
Association's desire to clarify that the result sought in this
arbitration is what is provided by the fourth paragraph of Article
IV.

The Association concludes that the grievance should be
sustained because the language of Article IV is unambiguous and
because the parties' practice establishes a consistent application
of that language. The Association contends that to remedy its
violation of the contract, the City must provide "the officers who
have attended required training . . . pay at the time and one half
rate."

THE CITY'S POSITION

The City contends the issue on the merits of the grievance
should be phrased thus:

Did the City violate Article IV of the Collective Bargaining
Agreement when it refused to pay officers at the rate of time and
one-half for time spent training in the use of pepper mace, said
training being voluntary and not required?

The City notes that the parties stipulated to facts sufficient
to be "dispositive of any factual disputes in this action" thus
limiting resolution of the issue noted above to the interpretation
of the fourth paragraph of Article IV.

Past practice is not, the City contends, an appropriate guide
to the interpretation of Article IV. Rather, the City argues that
standard rules of contract interpretation should be employed. The
City asserts that the most persuasive guide for this grievance is
that "every word, clause or sentence be given its effect" in
construing the fourth paragraph of Article IV.

Only its interpretation can give meaning to the fourth
paragraph of Article IV, according to the City. More specifically,
the City argues that the Association's view essentially reads the
words "are required to" out of existence. That this is the case
is, the City contends, established by the Association's
unsuccessful attempt to eliminate those words during the
negotiations which stretched well into 1992. The City concludes
that only its view of the disputed provision can effect the meaning
of each word. It necessarily follows, the City concludes, that its
interpretation must be accepted.

The City argues that the grievance was not submitted for
arbitration within five days of the completion of the fourth step
as required in Article XVIII, Section E. More specifically, the
City contends that it advised the Arbitrator of its timeliness
concern as soon as the grievance was assigned for scheduling, and
that it advanced its concern at the hearing, as is appropriate.
Even if its position on the untimeliness of the submission of the
matter is accepted, however, the City notes it "would encourage the
Hearing Examiner to rule on the merits of this case regardless of
the procedural issue."

Whether on a procedural or a substantive basis, the City
concludes that "(t)he Union's grievance should be denied."

DISCUSSION

The first issue concerns the timeliness of the Association's
request for arbitration. Article XVIII, Section E, requires an
arbitration appeal to be filed "within five (5) days" if "the
grievance is not settled at the fourth step". The Association's
request was not filed within five days of Bill's fourth step
answer, and the second paragraph of Article XVIII renders "invalid"
any grievance "not properly presented to the next step within the
time limits". The second paragraph of Article XVIII does, however,
permit the parties to extend the timelines of the grievance
procedure "by mutual agreement".

The parties mutually acknowledge that the five day time limit
was extended to permit the grievance to be discussed during
contract negotiations. The issue posed is whether the five day
period should be considered to have lapsed at some point during the
negotiations. The City urges the grievance should have been
advanced when the Association dropped its proposal to amend Article
IV.

Since the parties did not bargain a termination date to the
agreement to hold the grievance in abeyance, the termination sought
by the City must be implied. Since this implication would overturn
an agreement specifically authorized by Article XVIII, the
implication must have a solid basis in fact and in arbitral policy.

There is not, however, a solid basis in fact or arbitral
policy to imply the termination of the agreement to hold the
grievance in abeyance. Since the parties did not address when
their agreement would lapse, the termination lacks an immediately
apparent factual basis. Whether the Association's dropping of a
related contract proposal effectively terminated the parties'
agreement to delay the processing of the grievance is, as a factual
matter, speculative. Whether or not the Association would have
resurrected the proposal, the dropping of a pending grievance or
grievances may have value during the give and take of bargaining.
Accepting the City's contention calls for an undue level of
speculation on the Association's bargaining strategy.

Beyond this, the implication the City seeks is tenuous as a
matter of arbitral policy. The goal of grievance arbitration is to
give the parties the intended effect of their agreement. Where, as
here, there is no express agreement, the conduct of the parties is
the most reliable guide to their intent. It is undisputed that the
parties, in general, are less than strict in their enforcement of
grievance timelines. This is apparent in the processing of this
grievance, since an untimely meeting at the fourth step was not
objected to by the Association. The City has, in addition,
contended that a decision on the merits may be desirable even if
its timeliness argument is accepted. Against this background,
there is no persuasive basis to imply a termination date to their
agreement to hold the grievance in abeyance. This is not to say
the timelines of Article XVIII cannot be strictly enforced.
Rather, this is to say that it is unpersuasive for an arbitrator to
imply a more stringent reading of grievance timelines than the
parties have manifested by their conduct.

The parties were unable to stipulate the issue on the merits
of the grievance. The issue adopted above has been stated broadly,
to subsume each party's position on whether the grievants were
"required to participate", within the meaning of the fourth
paragraph of Article IV, in the pepper mace training.

Each party claims that the fourth paragraph of Article IV
clearly and unambiguously supports their interpretation. That each
party advances a plausible reading of the fourth paragraph makes it
impossible to conclude the reference is clear and unambiguous. The
City's interpretation reads "required to participate" to mean that
training must be either voluntary or required, and that the City
must make the distinction, as it did in the Memo. The
Association's interpretation reads "required to participate" as a
function of the training at issue. In this case, the grievants, to
carry pepper mace as an enforcement tool, were "required to
participate" in certification training. Both interpretations are
plausible.

Past practice and bargaining history are the most persuasive
guides to resolve contractual ambiguity, since each focuses on the
conduct of the bargaining parties, whose agreement is the source
and the goal of contract interpretation.

Evidence of bargaining history is unhelpful. The City
contends that the Association's proposal to delete the reference
"required to participate" from the fourth paragraph of Article IV
acknowledges that its interpretation renders the reference
meaningless. The contention has persuasive force. The force of
the argument is, however, logical and not factual. There is no
persuasive evidence that the Association made the proposal for any
reason other than to clarify that the paragraph should be
interpreted as it seeks here. Whether the Association's proposal
is persuasive is the issue to be resolved.

Past practice is the most persuasive guide for resolving this
dispute, and that guide favors the Association's interpretation
over the City's. Before examining the practice, it is necessary to
further focus the dispute the practice is to be applied to.

The parties dispute how to distinguish whether the pepper mace
training was voluntary or required training under Article IV. That
there can be a distinction between voluntary and required training
is implicit in the word "required". The grievance questions
whether the Memo is a valid way to distinguish voluntary from
required training. More specifically, the grievance questions
whether the City can, while providing the training opportunity to
permit pepper mace to be used as an enforcement tool, unilaterally
deny that the training can carry an overtime premium.

Demonstrated practice undercuts the persuasive force of the
City's reading of Article IV. The practice at issue here is
procedural in nature. The Memo was the first time the City
asserted the unilateral right to characterize a scheduled training
opportunity in the use of an enforcement tool as "voluntary", thus
eliminating any possibility of an overtime premium. The
implications of this assertion are significant, since the right
asserted by the City is unfettered. While the City has attempted
to distinguish the pepper mace training from other training
opportunities, there is no basis for doing so other than the City's
desire to eliminate the possibility of overtime. Pepper mace is no
more and no less essential an enforcement tool than is the PR-24.
There is no dispute that the City has routinely approved overtime
for officers who have attended PR-24 certification or skills
training during off-duty hours. That certification on usage of the
straight baton is required of an officer as a condition of
employment cannot detract from the fact that an officer elects to
use or not to use the PR-24 in the same way an officer elects to
use or not to use pepper mace. The Memo is, then, the only
distinction between the "required" PR-24 training and the
"voluntary" pepper mace training.

The Memo seeks, then, to create an unfettered right. If the
designation of "required" or "voluntary" is thus determinable by
the City, it has in effect reserved to itself the right to
characterize any training as "voluntary".

The demonstrated practice, however, locates the compulsion of
training not in an after the fact determination by the City, but in
the training itself. Thus, use of the elective PR-24 was paid
because the tool is not available without certification training.
The training is "required" due to the impossibility of the use of
the PR-24 without training. That the City has, prior to the summer
of 1991, afforded overtime for training in elective functions such
as ID Tech, Recruit Assessor, Defensive Tactics Coach, Shooting
Coach, and Field Training Officer underscores this point. In each
case, the function was elective. However, once an officer
committed to assuming the function, training was "required", and
compensated with overtime when the training occurred during an
officer's off-duty hours.

Although the City has concentrated its arguments less on the
proof of the practice than on its relevance, the record does
establish both that the City has not chosen to unilaterally label
training as "voluntary" while offering it to officers, and that the
compulsion to generally offered training flows from the need for
the training, rather than a unilateral City announcement. It is
undisputed the Memo is the first of its type. Beyond this, it is
apparent the City has, in numerous instances, approved overtime for
training in elective functions or in the use of elective
enforcement tools. Union Exhibit 3, which contains overtime
vouchers for three pay periods over a three year period stretches
to twenty-two pages. This is not a scientific sample, but does
afford some indication of the frequency with which the City has
approved overtime for training. Beyond this, such approval extends
over a considerable period of time. For example, the City has paid
overtime for the Recruit Assessor training from at least 1988 until
August of 1991, and paid overtime for Defensive Tactics Coach
training which took place ten to eleven years ago.

Arbitral precedent has varied in the characterization of what
constitutes a binding practice, and what effect that practice
should be given. The factors traditionally cited to constitute a
practice turn on the clarity and consistency of repeated conduct
over time. (3) However stated, the source of
the binding force of
a past practice is the agreement manifested by the parties'
conduct. (4) The effect given demonstrated past
practice has ranged
from clarifying contract language to establishing benefits not
covered by, or in contradiction to, contract language. The latter
uses are controversial, while the use of past practice to construe
ambiguous language is not. (5)

In this case, past practice is not cited by the Association to
establish a benefit independent of, or in opposition to, the
provisions of the agreement. Rather, past practice is cited as a
guide to clarify that its interpretation of the fourth paragraph of
Article IV is the one accepted, prior to the issuance of the Memo,
by the parties.

The evidence characterized above shows conduct of a sufficient
duration, consistency and clarity to establish a practice which
clarifies the terms of Article IV. It should be stressed the
practice is not whether every type of training has resulted or must
result in City approved overtime. Rather, the relevant practice is
procedural in nature, and establishes that the City has not made a
unilateral determination of what training is voluntary, as opposed
to required, coincidentally with a general offer of the training.

In sum, the language of the fourth paragraph of Article IV can
plausibly be read to support either party's interpretation. The
demonstrated practice, however, supports the Association's
interpretation over the City's. Because each party has argued the
implications of the grievance, it is necessary to tailor this
conclusion to those arguments.

The City forcefully contends that the Association's
interpretation reads the reference "required to participate" out of
existence. Initially, it should be noted that the City's
interpretation of the reference is not flawless. The City reads
"required to participate" as "expressly required by the City".
This view underscores that the Memo is crucial to defining the
voluntary or required nature of the training, but ignores that the
provision contains no direct reference to the City or to written
approval. The Association's interpretation more persuasively draws
on the fact that the fourth paragraph of Article IV is written in
the passive voice. This focuses the provision more on the training
than on the procedure by which the City approves it.

The City's contention does, however, have considerable
persuasive force. Its force turns, however, on whether the
Association's interpretation eliminates any City discretion over
training, thus rendering all training required. The Association's
arguments have not clarified what, if any, training it views as not
being required.

The City, ultimately, is the source of the distinction between
required and voluntary training. The grievance questions not so
much whether the City makes the distinction, but how. The City, by
the Memo, sought to make the distinction after recognizing that it
would permit the use of pepper mace and would provide training to
permit its use. To permit the City to make the distinction in that
fashion would, as noted above, eviscerate the parties' past
practice. Pushed to its logical conclusion, such a procedure would
permit the City to eliminate any overtime payment under the fourth
paragraph of Article IV by labelling training as "voluntary".

Ultimately, the distinction between voluntary and required
training under Article IV is whether overtime will be afforded for
training conducted during an officer's off-duty hours. Given the
practice noted above, the City's discretion to make the distinction
must be focused directly on the issue of overtime. At a minimum,
this means the City can control the timing of training sessions so
that officers will attend during on-duty time. More significantly,
the City controls both the training it provides and the purposes
the training will be approved for. In this case, the City could
have chosen not to approve the use of pepper mace, or not to
provide training in its use. In the latter case any training
received from non-City sources would be voluntary, and not eligible
for overtime. By the Memo, the City, having approved the use of
pepper mace, sought to make training in its use generally available
without generating any overtime. The City sought, then, the
benefit of the training without liability for its cost. This
result is not improper in itself. Approving it, however,
essentially reads the fourth paragraph of Article IV, as well as
the practice developed under it, out of existence. The Memo, if
agreed to by both parties, could have achieved the result sought by
the City. That result has not yet been secured in collective
bargaining however, and thus cannot be granted in arbitration.

In sum, the grievance questions whether, consistent with
Article IV and relevant practice, the City can unilaterally deny
overtime after having approved the use of pepper mace and after
having provided the required training during the grievants' off-duty hours. While the
language of the fourth paragraph can
plausibly support this result, the parties' past practice cannot.
To eliminate the possibility of such overtime, the City could have
scheduled training during on-duty hours; could have refused to
approve the use of pepper mace as an enforcement tool; could have
declined to provide training in its use; or could have bargained
with the Association concerning whether the training could be
provided on a voluntary basis only. To affirm the unilateral
denial of overtime stated in the Memo would read the fourth
paragraph of Article IV and relevant past practice out of
existence.

The parties have indicated the issue of remedy poses no
factual issues, and involves compensating the officers covered by
the grievance at the appropriate overtime rate for time spent in
the pepper mace training.

AWARD

The grievance was submitted for arbitration in a timely
fashion under Article XVIII, Section E.

The City did violate Article IV of the Collective Bargaining
Agreement when it refused to pay officers at the rate of time and
one-half for off-duty time spent training in the use of pepper
mace.

As the remedy appropriate to its violation of Article IV, the
City shall make the officers covered by the grievance whole by
compensating them, at the appropriate overtime rate, for the time
spent in attending pepper mace training during their off-duty
hours.

Dated at Madison, Wisconsin, this 6th day of May, 1993.

By Richard B. McLaughlin /s/

Richard B. McLaughlin, Arbitrator

1. Bartell's voucher was received into evidence as
Joint Exhibit
3. Nickels' voucher was received into evidence as Joint
Exhibit 4. Meyer's voucher was received into evidence as
Joint Exhibit 5.